Personal Injury Law Blogs

Will a Personal Injury Attorney Handle My Property Damage Claim?

New post regarding car accident claims answering the legal question “Will a personal injury attorney handle my property damage claim?” based on law in Utah and generally.

In the immediate aftermath of a car accident, the focus should always be on treating injuries and getting everyone involved to a safe place. Can Pregnant Women Take CBD? If there are injuries, an ambulance needs to be requested when you call 911. Severe injuries may even call for some first aid on the scene from those involved if they are able to provide it.

Whether you are injured or not, once the dust settles on the accident, another concern will quickly arise; the damage to your vehicle. Getting your car repaired or replaced as soon as possible is often at the top of your mind. You might rely on your vehicle to get to work or to get your kids to school. And if the accident was not your fault, you’ll be eager to make sure that the responsible party’s insurance is going to pay for the damage.

If you did suffer injuries, you may already be planning to hire a personal injury lawyer to handle your claims and fight for a settlement also, a physician that can tell about your injury status, check Movement 101 physiotherapist for the therapists that can help you. But will that personal injury attorney also handle your property damage claim? Keep reading to find out.

Who Pays for the Damage to Your Vehicle?

Who is responsible for paying to fix your vehicle depends on the circumstances of the crash and where you are located. In most cases, the insurance company of the person responsible for the crash has to pay. However, in a no-fault state, or if more than one party is responsible, your own insurance company will pay for the damage instead. Contact the nearest injuries law firm to gather legal information.

How Much Will Insurance Companies Pay?

Insurance payouts for property damages following a car accident fall under one of two categories; actual cash value and the cost for repairs. If the estimated cost of repairing your vehicle is less than 75 percent of the value of your car, the insurance company will likely choose to pay to fix the damage.

However, if the damages will cost more than 75 percent of the value, the insurance company may instead choose to pay the actual cash value for your car. This is based on the fair market value of your vehicle prior to the crash, the total mileage, the condition, and what similar models are being priced at for sale.

Will a Personal Injury Lawyer Handle My Property Damage Claim?

According to a Rhode Island personal injury lawyer, whether or not a personal injury lawyer will handle your property damage claim depends on a few factors. The first is whether or not you were injured.

If You Were Injured

If you were injured seriously enough to warrant an ambulance ride or hospital visit, you may choose to hire injury lawyer warwick rhode island to help you seek a settlement. In this case, the property value part of your claim will also be handled by your attorney. That’s because your lawyer will seek a single settlement for your losses.

Insurance companies are less likely to fight paying claims to repair a vehicle than they are the perceived value of pain and suffering. Your attorney may simply submit and follow through on insurance claims to get your property value taken care of, and pursue other legal measures to get compensation for your injuries separately.

For cases like these, Mike Morse Injury Law Firm is a professional injury law firm that specializes in personal injury cases.

If You Were Not Injured

If you were not injured in the car accident, the answer gets a bit more complicated. In most cases, it will not make financial sense to hire an attorney to handle your property damage case.

For example, say that an insurance company decides to pay you fair market value for your totaled car. While they may calculate that value correctly by their standards, your vehicle may be worth more to you than it is worth at market value. The amount you receive may not be enough for you to purchase a new vehicle, especially if you owned an older car or one with high mileage. However, hiring an attorney will likely cost you more than you would receive by fighting back.

Another instance that you might consider hiring an attorney is if you had to pay to rent a car while yours was in the shop. However, the insurance company is only likely to agree to cover this cost at a reasonable rate. So if you choose to rent an oversized vehicle or luxury vehicle, your payment may be much lower than your actual bill. For this reason, hiring an attorney may cost you more than simply paying for your rental on your own.

Hiring a Personal Injury Lawyer for Your Property Damage Case

If you were injured in a car accident and seek legal help, your property damage case is covered as well. However, if you were not injured, it’s a good idea to think twice before investing in an attorney, such as those at McMullin Injury Law, to fight your case.

The Child Witness: Tips from the Trenches

Questioning a child witness is one of the most challenging tasks for the advocate. To do it well requires patience, skill, and a thorough command of the language, so that respondent answers are elicited to the questions asked.

Introduction

Questioning, a child witness, is one of the most challenging tasks for the advocate. To do it well requires patience, skill, and a thorough command of the language, so that respondent answers are elicited to the questions asked. Children attract the sympathies of juries who can well appreciate that a courtroom is a foreign, if not hostile, environment for most everyone, especially children. Many of us lack the experience and sensitivity to deal effectively with the child witness. We forget that children are not little adults. They do not understand the legal system, and they cannot speak like adults. The life experiences of children are far more limited than that of adults, and, as such, they cannot comprehend the reasoning or motives of adults. Besides, words often have different meanings, so that elaborate, and compound questions tend to be out of reach of the child’s ability to understand. Given their desire to please, children are often unwilling to admit that they do not understand a question and will not seek clarification as they will want to be helpful to the adult questioner, and will often provide answers to questions they do not understand.

Outlined below are some of the more common issues confronted by the plaintiff’s counsel when dealing with child witnesses in a civil case.

Specific Issues to Keep in Mind When Dealing with Children

1. Memory

“Generally, current research holds that children do not remember as well as adults, but that information provided through a child’s free recollection is generally accurate1.”

From the perspective of the child plaintiff’s counsel, it is critical to interview children promptly and to record their account of events immediately, or as soon as possible after the actionable wrong, as children’s memories generally fade over time.

2. Suggestibility

Children, more so than adults, are prone to suggestions made by the questioner. As previously stated, children tend to want to please the adult and to conform to what they believe to be the expectations of the adult questioner. Also, research confirms that leading questions are likely to elicit inaccurate information from children.

The most successful strategies for obtaining accurate, descriptive recall were found to be encouraging and accepting of unprompted descriptions, accompanied by sparing use of general questions to prompt recall. Questioning for specific details is likely to result in inaccurate information. Above all, when questioning, it is essential to convey as powerfully as possible to the child that questions do not have to answer, moreover, that it is better to say “I don’t know” than to give an uncertain answer2. (emphasis mine).

When you first meet with the child, ask open-ended questions that do not suggest you know anything about the case. You want to extract his or her version of the events correctly as he or she remembers it. Keep a detailed record each time you meet the child to see if his or her story remains consistent.

3. Fear

Any child will likely be fearful, or at least a little bit apprehensive, about the prospect of meeting with a lawyer, let alone going to court. It is, therefore, essential to interview a child in comfortable and familiar surroundings. If you must interview the child in your office, try to have some age-appropriate items at hand to put the child at ease. For example, when I was counsel to the Children’s Lawyer, I had a collection of trolls on my credenza that always seemed to captivate the interest of my child clients. Always keep in mind that your goal is to make the child feel comfortable and to foster a relationship of trust.

Bogoroch & Associates LLP has extensive experience in Personal Injury cases and passionately believes that victims of personal injury are entitled to access to justice.

Notes:

1 Ralph Underwager and Hollida Wakefield, The Real World of Child Interrogations (Springfield, 11.: Charles C. Thomas, 1990) at p. 28; as stated in Bryan Finlay, Q.C. and T.A. Cromwell, Witness Preparation Manual, (Second Edition, Canada Law Book Inc., 1999) at p 93.

2 Helen R. Dent, “The Effects of Interviewing Strategies on the Results of Interviews with Child Witnesses,” in A. Trankell, ed. Reconstructing the Past (The Netherlands: Kluwer, Deventer, 1982), at p. 292, as cited in Finlay, supra note 2 at p. 94.

Personal Injury Claims Will Be Slashed In 2020.

Certain changes to personal injury law have taken effect from April 2020. According to a personal injury lawyer, this will result in a reduction in compensation claims and will make receiving legal representation harder for claim victims. Find out if you have recently hired a personal injury lawyer.

What Personal Injury Laws Are Changing?

With the introduction of the Civil Liability Act 2018, only small courts and 423HURT personal injury attorneys are now authorized to handle personal injury claims, except:

  • Overall damages sustained is over £5,000 for road accidents or £2,000 for other incidents.
  • The entire cost of the claim (special damages + general damages) is more than £10,000.


According to a personal injury lawyer , before the changes, the limit to general damages remained £1,000. However, only very minor injuries such as bruises, short-term whiplash, and cuts fall under the small claims category.

Following the reform, several other serious injuries, such as some scarring, fractures, and other injuries that may require up to a year to completely heal, are now included under the small claim limit.

Why You Should Be Concerned About The Small Claims Limit.

According to a personal injury lawyer due to the small nature of the compensation, solicitors are typically unable to recoup the cost of their legal fees from the defendant, even if they win the case.

Therefore, most solicitors pass on the chance of representing defendants in a small claims court. Essentially, defendants will struggle to get legal representation for compensation for a small claim.

Does This Mean That The No-Win-No-Fee Option From Solicitors Will No Longer Be Feasible After April 2020?

Very likely. Generally, you will find it hard to convince a solicitor to take up a personal injury case that is estimated to be worth below £,5000 on a no-win-no-fee basis, as they will deem the case ‘low-quantum’.

Do I Really Need A Solicitor?

Maybe or Maybe not. Basically, low-value claims are straightforward. Also, there are plans to take the legal proceedings online, where the services of a solicitor will not be needed. Besides, a low-value claim doesn’t imply an easy case. Similarly, in personal injury law, some high-value claims can be straightforward and low-value complex.

You may handle your claim proceedings on your own, if:

  • The defendant has admitted full liability.
  • You have fully recovered from any sustained injury (so you can estimate the impact on your life).
  • The facts surrounding the accident are relatively simple to understand.

On the other hand, if any of the listed factors change, the case may become more complex as it progresses (i.e., where there is new evidence, you sustained injury worsens, or the defendant disagrees with your claim), and you may find that you lack the legal skill to proceed you can ask for help to Costa Ivone. This can imply:

  • Risking long delays to the entire claim process.
  • Risking delay/underpayment of interim payments.
  • Risking a lesser settlement.

At the very worst, unforeseen complications can make you lose your case.

There’s More…

The compensation liable to soft tissue injury victims (including whiplash) arising from road accidents will be significantly slashed, visit KillianLaw.com for more details on accident law

What Falls Under A ‘Whiplash Claim’?

According to The Ministry of Justice (MOJ), a whiplash claim is:

  • A strain, sprain, rupture, or tear of lesser damage to a tendon, ligament, or muscle in the neck, shoulder, or back.
  • A soft-tissue related injury affecting the tendon, ligament, or muscle in the neck, shoulder, or back.

By How Much Will A Soft Tissue Injury Compensation Claim Be Slashed?

Soft tissue RTA claims are now under a revised tariff system where the injury takes no longer than two years to heal.

Under this new tariff, the payable compensation amount to soft tissue injury victims for pain, loss of amenity or suffering, will be significantly less than it used to.

Source: Legal Futures.

Are There Any Exceptions?

Yes. Vulnerable road users such as cyclists, pedestrians, and motorcyclists are excluded from this change.

Similarly, passengers (except children as they fall under ‘protected parties’) are included in this change.

Why Did The Government Approve A Slash In Compensation?

Despite obvious instances and coverage to the contrary, the government’s research and other independent studies have concluded that there are hardly any cases of whiplash fraud. In the same vein, some studies based on older data have refused to acknowledge the apparent decrease in whiplash claims that have happened recently, in light of reforms established in 2013.

Prior to these changes, the UK already had one of the lowest compensation levels in Europe.

Supposedly, the government claims that the reform was enacted to stop fraudulent claims. Exploring the real reason behind these enacted changes will not be discussed in this article, however, several other sources have addressed the subject in detail.

How We Can Help You In 2020

We strongly think that this new reform will leave people with valid claims, vulnerable to under-compensation. Tellingly, many could be denied access to justice.

Compensation serves the main purpose of helping to restore the original lives (or as close as possible) that the person had before the incident occurred as well as covering any treatment or loss sustained within that period. Without compensation, people risk not having the means to take care of both themselves and their families.

Most people will likely not be open to the possibility of representing themselves in a small claims court. Most claimants usually don’t want to be actively engaged in the process.

I Had An Accident Before This Change, What Applies To Me?

The new tariffs apply to every personal injury claim filed from April 2020, and not the date the accident happened.

So, it is strongly recommended that you submit your claim as soon as possible and contact a personal injury attorney. The current start date is April 2020, but it may be subject to change.

Free, No-Obligation Expert Advice.

Feel free to contact Fracture Compensation (the authors of this post and indeed where this post was first published – and republished here with permission). They will be glad to provide additional information regarding how the 2020 changes may affect your personal injury claim.

Identifying Concussion Signs in Children and Teens

New contribution from a personal injury law firm, sharing useful information in respect of identifying signs of concussion.

Parents, coaches, and teachers frequently overlook concussions by characterizing physical impact as a minor ‘bonk on the head.’  For example:  When a child or teen takes a hit while playing sports, they are usually assessed quickly at the sidelines.  But soon after, the victim is put right back into the game and sent to school the next day.  These practices ignore the dangers of leaving a concussion untreated and overworking an injured brain.  The signs and symptoms of a concussion may not appear for up to 48 hours, which explains why victims and their caregivers often make this mistake.

Young people experience concussions very differently from adults.  This makes the injury even more difficult to identify immediately after impact.

What is a concussion?
According to the BC Injury Research and Prevention Unit, a concussion occurs when the brain is rapidly shaken up in the skull.  This usually happens after a direct hit in the head or a blow to the body that causes a sudden jerk of the head or neck.  Although concussions mainly occur during contact sports, it can happen during seemingly innocent play at recess, for example.  An untreated concussion can lead to long-term health risks if not dealt with promptly and adequately.

Concussions in Children vs. Adults
Pediatric neurosurgeon Dr. Todd Maugans led a study, published in the Journal of American Academy of Pediatrics.  This study identified the significant differences in concussive symptoms between children and adults.  It found:

  • Symptoms in young people last longer;
  • Children also exhibit emotional symptoms (i.e., irritability and sadness); and
  • Recovery from those symptoms takes longer than adults.

Some examples of red flag symptoms in children include:

  • Repeated vomiting;
  • Deteriorating or loss of consciousness; and
  • Complaints of neck pain, double vision, and headache.

Educating the Public
The BC Injury Research and Prevention Unit has published a new web-based tool for parents and coaches.  It is known as CATT – Concussion Awareness Training Tool.  The initiative works with experts in sports medicine to publish current, evidence-based research on concussions.  The team helps a variety of groups identify concussion signs and understand appropriate treatments specifically geared towards young people.  The groups benefitting from this information include medical professionals, players, coaches, and parents.

The CATT promotes concussion management in the healthcare community through an additional resource known as the ‘Concussion Clinical Toolkit.’ Healthcare providers and other professionals can access expert discussions on the assessment/management of concussion in young patients.  Its database sets out specific guidelines for treatment and diagnosis.

The CATT website also provides a variety of other resources.  They range from educational videos to helpful checklists that will help you identify concussive symptoms.  There are also insightful stories from young people describing their journey to recovery. A series of professional athletes have also contributed to the CATT.

It is essential to stay educated on how young people experience concussions. Reviewing the CATT is one of the best ways to be prepared for the worst-case scenario.  No matter how careful or athletic a child may be, no one is immune to a concussion —look at Sidney Crosby.

Bogoroch & Associates LLP has extensive experience in Personal Injury Law and firmly believes that victims of injury are entitled to access to justice.

I was hit by a vehicle while jaywalking, what do I do?

In my professional practice of being a personal injury lawyer, I frequently represent individuals who have been injured in pedestrian accidents. There are instances when pedestrians bear some responsibility for being struck by vehicles, such as by jaywalking. According to a personal injury lawyer, whether an injured jaywalking pedestrian can recover damages hinges on the negligence laws of the state in which the accident occurred. Let’s take a look at the impact a pedestrian’s conduct can have on an injury claim.

Pedestrian Accidents at a Glance

According to the Centers for Disease Control and Prevention (CDC), 129,000 individuals are injured in pedestrian accidents each year; almost 6,000 are killed. Although all drivers have a duty not to cause injuries to others, pedestrian accidents are frequently caused by driver errors, such as:

  • Distracted driving
  • Failure to yield
  • Failure to obey traffic signals
  • Speeding
  • Driving under the influence

It is worth noting that pedestrians are also required to exercise due care for their own safety by obeying traffic laws. This includes waiting for the walk signal at traffic lights, using marked crosswalks, not walking alongside the road, and using a sidewalk when provided.

Don’t pedestrians always have the right of way?

According to a personal injury attorney laws vary from state to state, pedestrians generally have the right-of-way when there is no traffic control signal. If it’s not working, a driver must yield right of way whether the pedestrian is in a marked crosswalk or not. This means the driver must slow down and allow the pedestrian to cross. At the same time, crossing a street or walking in the road without regard for approaching traffic, known as jaywalking, is unlawful.

Nonetheless, drivers are responsible for using caution when driving to avoid a collision with a pedestrian. They must also use a higher level of caution near schools, parks, and neighborhoods where children are known to gather. Finally, drivers must be mindful of children and adults who may not have full mental capacity, or have a disability (e.g. are using an assistive mobility device), or are likely blind or hearing impaired.

When is a pedestrian responsible for an accident?

Some states — Alabama, Maryland, North Carolina, Virginia, and the District of Columbia — have contributory negligence laws that bar pedestrians who are responsible for an accident in any way from recovering damages, even if the driver was speeding, impaired or driving recklessly.

The remaining states use comparative negligence that can assign some blame to the jaywalker and some blame to the driver. In a pure comparative negligence state, a pedestrian who is injured while jaywalking is partially responsible for the accident and therefore not permitted to recover from the driver. In a modified comparative negligence state, an injured pedestrian can recover damages even if he or she was jaywalking. The amount of any award will be reduced by the percentage of blame assigned to the victim by a court or an insurance adjuster.

If you’re uncertain which negligence laws your state follows, a personal injury attorney can provide you with guidance, explain all your rights, and explore your options for obtaining compensation.

What To Do After Being Hit By a Car

If you’re hit by a car, contact the police and seek medical treatment for your injuries. If you have been injured, let’s say you hit your head, don’t get up and try to move around. Let the first responders assess your injuries and transport you to the hospital if necessary.

If you are able to do so, get the name and contact information of the driver, as well as witness names and contact information, though the police will gather this information when they arrive at the scene. Also, if possible, get photos of the accident scene, your injuries, signage, and traffic lights. It may also be possible to get video surveillance footage of the scene from roads with traffic cameras or stores with security cameras.

Finally, you should follow all your auto accident doctor orders for medical treatment, keep all medical bills, and keep track of missed work time and other accident-related expenses. The medical record will be important evidence in your pedestrian accident claim. Once you’ve begun to recover, contact an experienced personal injury lawyer who is well-versed in the negligence laws of your state.

The Takeaway

Let’s face it: many of us have engaged in jaywalking. Whether or not it’s a wise thing to do is the subject of another discussion. While walking alongside the road may be unavoidable at times; however, being injured while jaywalking will have an impact on the viability and value of your injury claim. The best way to protect your right to the maximum compensation you deserve is to consult with an experienced pedestrian accident lawyer.A

David Jones is a founder and co-managing partner of Jones Kahan Law. Mr. Jones’ practice is heavily focused on personal injury and civil litigation. He has dedicated his career to assisting victims of injuries, taking a hands-on and personal approach to every case. He strives to treat his clients that way he would treat his family, with respect and honesty.

Illinois Nursing Homes May Be Unfit To Manage COVID-19

With its lethal effects on the elderly and those with immune deficiencies, COVID-19 poses a special threat to nursing homes nationwide. Illinois nursing homes and temporary rehab clinics are now tasked with caring for the infected while also containing the coronavirus pandemic. This is no doubt a monumental task for any state. 

However, an analysis by The Chicago Tribune may concern families as to whether Illinois, a state already infamous for its inadequate elderly care, can manage the 80,000 living in nursing homes.

The Study

The Tribune, who released their findings on March 19, studied federal inspection data on infection control for facilities certified by Medicare and Medicare. They found that since 2016, 89 percent of Illinois homes — 642 of 732 — have been cited at least twice for violating infection control regulations. According to The Tribune, Illinois is the third-worst state in the nation for nursing home infection. 

In the Chicago area specifically, The Tribune found 77 facilities with three or more citations. Nine of those had more than five citations. The lowest rated facility, Aperion Care Forest Park, had seven.

These citations are given if inspectors see the facilities fail to manage the basic hygiene and cleaning requirements for assisting the elderly, such as a failure to use gloves, clean a mop bucket, wear an N95 mask or wash hands between patient visits. Now, with the COVID-19 death toll rising above 200 in Illinois, nursing homes must bolster their care to ensure their patients’ safety.

How to Know if a Nursing Home is Properly Containing the Virus

On March 20, the Illinois Department of Public Health released its “COVID19 Control Measures for Long Term Care,” which outlined the procedures nursing homes should adopt in order to avoid an outbreak. Though this document is subject to change, it recommends all residents be screened every eight hours.

Once an infected patient is identified, the following measures should be addressed:

  • The patient’s vitals and pulse oximetry be checked every four hours
  • The patient be given a private room or a room with another symptomatic/positive patient
  • Consider that staff caring for positive or symptomatic patients do not care for negative or asymptomatic patients
  • Positive or symptomatic patients be given a surgical mask and encouraged to wear at all times

If your nursing home, or the nursing home of a loved one, does not adequately follow these isolation procedures, it could mean the staff is ill-equipped to maintain the outbreak. 

Illinois Nursing Home’s Struggling with COVID-19

Just as The Tribune’s research suggests, several nursing homes in Illinois have failed to manage their pandemic control. One nursing home in the west suburban Carol Stream, a village in DuPage County, has seen 51 confirmed cases. Seven of those residents have died from the virus.

At the Westchester Health and Rehabilitation Center, employee Terralyn Baugh said she had been feeling sick for several days before she got tested for coronavirus. She received a positive diagnosis, and as of April 1, at least two elderly patients had died from COVID-19. 

Waiving Away your Right to Sue: The Enforceability of Waivers

Bogoroch & Associates LLP strongly believes that victims of Personal Injury are entitled to access to justice. This new post is based on law in Ontario, Canada and generally.

With warmer weather finally on the horizon, Ontarians are enthusiastically heading outdoors to enjoy recreational activities such as rock-climbing, treetop rope courses, and skydiving simulators. Many of us will hardly reflect on the effect of signing a waiver before getting in line to enjoy these activities.

A recent Ontario Court of Appeal decision has made it more difficult for victims injured while partaking in activities like these to obtain compensation. The Court of Appeal upheld the use of waivers by commercial occupiers, including ski resorts, to avoid or mitigate liability, and held that plaintiffs could not rely on the Consumer Protection Act to override valid waivers under the Occupiers’ Liability Act.

This decision related to two appeals that involved similar issues concerning the interaction and conflict of the Occupiers’ Liability Act, RSO 1990, c. O.2 (“OLA”) and the Consumer Protection Act, 2002, SO 2002, c. 30, Sched. A (“CPA”).

The plaintiff in the first action, David Schnarr, purchased a season ski pass to Blue Mountain Resorts, and executed a waiver that waived any claims against the ski area operator and others, and released them from liability for any damages that he may suffer. Mr. Schnarr then allegedly collided with a piece of debris while skiing on the premises. In the Rule 21 motion decision, Schnarr v. Blue Mountain Resorts Limited, 2017 ONSC 114, Tzimas J. held that there was no conflict between the OLA and the C.P.A. Tzimas J. held that Mr. Schnarr could advance two causes of action: one for negligence, which would be subject to the waiver, and one for breach of warranty, which would not be subject to the release as the release was void under sections 9(3) and (4) of the CPA Blue Mountain appealed the decision.

The plaintiff in the second action, Elizabeth Woodhouse, purchased a lift ticket, equipment rental and a ski lesson at Snow Valley and executed a waiver. Ms. Woodhouse was then allegedly injured while using a tow rope on the premises. In Rule 22 case motion decision Woodhouse v Snow Valley, 2017 ONSC 222, McCarthy J. held that section 9 of the CPA voided the waiver and that these sections superseded the OLA provisions. However, McCarthy J. held that a court could have a void waiver bound a consumer under section 93(2) of the CPA. Ms. Woodhouse appealed the decision concerning the applicability of section 93(2) and Snow Valley cross-appealed concerning the application of section 9.

The main legal issue on appeal was whether sections 7(1) and 9 of the CPA overrides or otherwise impacts section 3 of the OLA. Section 7(1) of the CPA expressly prohibits the use of waivers:

7(1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

9(1) The supplier is deemed to warrant that the services supplied under a consumer agreement are of reasonably acceptable quality.

(3) Any term or acknowledgment, whether part of the consumer agreement or not, that purports to negate or vary any implied condition or warranty under the Sale of Goods Act or any deemed condition or warranty under this Act is void.

(4) If a term or acknowledgment referenced in subsection (3) is a term of the agreement, it is severable from the agreement. It shall not be evidence of circumstances showing an intent that the deemed or implied warranty or condition does not apply.

Conversely, sections 3 and 4 of the OLA permits the use of waivers:

3(1) An occupier of premises owes a duty to take such care. In all the case circumstances, it is reasonable to see that persons entering the premises and the property brought on the premises by those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the premises’ condition or by an activity carried on the premises.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify, or exclude the occupier’s duty.

4(1) The duty of care provided for in subsection 3(1) does not apply in respect of risks willingly assumed by the person who enters on the premises. Still, in that case, the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or their property and not act with reckless disregard of the presence of the person or his or her property.

As Nordheimer J.A. stated, “what the OLA permits, the CPA prohibits” (para. 43). It was held that there was an apparent conflict between the provisions.

Turning to the issue of how the conflict should be resolved, the Court of Appeal held that the OLA should take precedence for the following reasons:

  1. section 9(1) of the OLA sets out a “class of things” that may have higher liability or standard of care, including innkeepers, common carriers, and bailees. The Court held that while the list was not exhaustive, the items are of a different class than the consumer transactions considered under the CPA.
  2. The OLA was intended to be an exhaustive legislative scheme that replaced the common law concerning occupiers’ liability, and the CPA should not be interpreted to infringe on that scheme.
  3. The OLA deals specifically with waivers of liability, whereas the CPA generally applies to all consumer transactions. The specific provisions of the OLA override the general conditions of the CPA; and
  4. it would be absurd to conclude “that the Legislature went through the exercise of amending the OLA to clarify the liability of occupiers, and to encourage them to open their property for use by members of the public, all to have it rendered of no force or effect because of the existence of the CPA” (para 68).

Ms. Woodhouse’s claim raised the specific issue of whether section 93(2) of the CPA could be used to hold a consumer to a waiver of liability, even if section 9(3) of the CPA voided the release. The Court of Appeal dismissed the defendant’s argument that the Court could hold a consumer to a waiver of liability, even if the waiver were void under section 9(3), stating:

The purpose behinds. 93(2) is to avoid situations where a consumer, who has received the benefit of a consumer agreement, attempts to retain those benefits without performing his or her side of the agreement because of a technical breach of the CPA Section 93(2) is not intended to permit the Court to hold a consumer to a consumer agreement that violates one of the basic tenets of the CPA, especially when the provision is void. (para 77)

The Court of Appeal held that the Blue Mountain waiver bound Mr. Schnarr and Ms. Woodhouse was bound by the release in her lift ticket and the Snow Valley waiver, regardless of whether their claims were in tort or for breach of warranty.

Suppose you have been injured in a skiing accident or during another recreational activity. In that case, the personal injury lawyers at Bogoroch & Associates LLP can help you understand your legal rights and the impact of any waivers you signed.

 

The search is on for the UK’s brightest legal talent

Talented and passionate budding lawyers are being invited to put themselves forward for the chance to be named as the country’s brightest Future Legal Mind.

The Future Legal Mind Award is a law essay competition which is now in its sixth year. Past winners of the competition, which is run by National Accident Helpline, have gone on to enjoy success in the legal industry, with several becoming barristers and solicitors.

University of Buckingham student Charley-Anne Gordon was named winner of the Future Legal Mind Award 2019. She said: “Winning the competition has given me a boost to finish my degree and take another step towards my career goal of becoming a legal academic.

“I’d encourage anyone who is passionate about pursuing a legal career to enter Future Legal Mind 2020. Writing the competition essay gave me a chance to express my passion for law and the areas which interest me most, and to show my skills and knowledge.”

The Future Legal Mind Award is open to current law students – both undergraduate and postgraduate – and to legal trainees, including apprentices, who are within the first two years of their law career.

The winner of Future Legal Mind 2020 will receive a prize package including £2,000 and a mentoring session with one of National Accident Helpline’s experienced in-house lawyers.

To enter, entrants must write an essay response to the competition question, which can be found at www.national-accident-helpline.co.uk/future-legal-mind

Judges will review the essays and choose a shortlist of 10 entrants, who will be asked to create a smartphone video explaining why they should be named the winner. Judges will then review the videos and essays to choose their Future Legal Mind 2020.

Tom Fitzgerald, Managing Director of National Accident Helpline, said: “Every year we are more and more impressed by the quality of the entries we receive from the lawyers of tomorrow who are studying or working all over the UK. If you are in the need of hiring an attorney you are just one click away.

“We are very proud of the achievements of our six Future Legal Mind winners to date and we’re looking forward to finding the country’s brightest legal talent of 2020.”

Entries for Future Legal Mind 2020 must be submitted by midnight on Friday 28th February.

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The six winners of Future Legal Mind to date – top (l-r) Charley-Anne Gordon (2019), Gbemisola Obolo (2018), Hana Kapadia (2017), and bottom (l-r) Tom Phillips (2016), Amy Loughery (undergraduate winner – 2015) and Lukas Hamilton Eddy (postgraduate winner – 2015)

3 Hard Truths & Tips About Lawsuit Loans That Attorneys Must Know

Many personal injury victims find it hard to resume their daily activities. They may also face financial constraints until their case is settled in court. If this happens, many personal injury attorneys assist their clients in getting lawsuit loans. These are provided by settlement funding companies. Of course, if you end up seeking help from the wrong company, your client’s troubles will only increase and potentially leave them unhappy with their settlement check.

Let’s take a look at some facts about settlement funding companies and how you can help your client pick the right one.

Examine the Cost Structure

The first thing you need to determine is how much a lawsuit cash advance will cost your client. Take a look at the type of interests and the annual percentage rate before your client signs the dotted line. Unfortunately, as you know – some clients may be uninformed or uneducated on calculating interest. You will also have to calculate the estimated amount of time it will take for the case to be settled. This will help you determine the approximate cost of the lawsuit loan to the client. You can compare this cost with the settlement you expect to receive and advise your client accordingly. If you feel that the cost outweighs the benefits, you can see if the client has any other options.

Obviously, as most lawyers know – there are ethics issues if you lend directly to your clients.

Besides checking for the interest rate you can also screen potential companies for other advance services, if you are really worried for your client. The majority of the cost is typically interest, however; some companies creatively pile on fees. It is preferable your client works with a company that does not charge an application fee unless the interest is extremely low (or a small doc fee).

Look for Flexibility – Competitive Rates

Some settlement funding companies have a rigid policy structure. These can be difficult to work with. They may also provide your client with an excessive amount of funding that can create problems in the future. Make sure you avoid such lawsuit loan sharks. They will not work in the best interests of your clients and will try to maximize their profits. Interest rates vary drastically, and several website’s online are acting as middle men ultimately increasing the rate for the client. There are many lawsuit loan companies, such as Mayfield that will offer smaller personal injury lawsuit advances up front and the client can get additional advances at little extra cost. They also fund in house, and do enough in business they can keep their rates fair.

Get All the Necessary Details – Some Companies Aren’t Fair

The client must choose a settlement funding company that is willing to provide them with all the details of their funding process. For instance, some settlement funding companies will not share important information about the lawsuit cash advance. This can be a problem if the repayment timetable ends up being too unreasonable. Your client should never go with a company that has a time table in the first place, because this is likely a legal issue for that company. For example, if your client is required to pay off a significant portion of the loan within 6 months of settlement, then this may throw their financial plans in disarray. Getting clarity about such aspects of lawsuit loans can help your client in the future.

Let’s Sum It Up

As a personal injury attorney, you need to make sure that your client gets financial help from the right settlement funding company. You must choose a company that is transparent and flexible about their lawsuit loan structures. Make sure to evaluate the cost of the lawsuit cash advance. You must also advise your client against borrowing more money than they need.

If you are interested in promoting your litigation finance company, contact Dataflurry Law Firm Marketing.  They can help increase your search rankings online and drive new pre-settlement funding and lawsuit loan clients to your law firm.  https://www.dataflurry.com

What Are Occupational Chest Conditions?

Work related or ‘occupational’ chest conditions are diseases that develop as a result of exposure to certain irritants in the workplace. These conditions are more likely to develop in some occupations than others, such as factory work or a garage. They can worsen over time if they are not immediately diagnosed and treated, so it’s important to visit your doctor if you begin to experience problems with your chest. They can also be exacerbated if you have existing chest or breathing problems, or if you are a smoker.

These conditions are usually caused by work environments where you are exposed to dangerous chemicals or certain types of dust. Common industries where people experience work related chest conditions are flour, wood, chemical, paint, rubber and plastics. These materials can all omit dust or substances that can be harmful to the lungs. Over months or years of working in these environments, these substances can have a gradual effect on the respiratory system and eventually cause a disease in the lungs.

There are several different occupational chest conditions that you could develop in your workplace. Below we have listed a few examples, how they can develop, and how to look out for the symptoms.

Asthma

Asthma is swelling of the breathing tubes, and it can lead to chest problems. Symptoms can include coughing, wheezing and a tight chest. Some people have asthma from a young age but around one in ten cases of adult onset asthma are caused by the person’s workplace or occupation. Work related asthma is more likely to develop if you already suffer from allergies and can cause the asthma to re-trigger over the course of your time working in that environment.

Emphysema

Emphysema is damage to the breathing tubes and air sacs in the lungs. The main symptom is shortness of breath during strenuous activity or exercise. Over time as the condition worsens, this can increase to shortness of breath whilst standing still or sitting or lying down. Emphysema can be caused by a workplace environment where you would breathe fumes from harmful chemicals, or dust from grain or wood products.

Chronic Bronchitis

Together with Emphysema, Chronic Bronchitis forms Chronic Obstructive Pulmonary Disease, a very serious lung disease. Chronic Bronchitis is an infection of the bronchial tubes. It usually manifests as a wheezy cough, but symptoms can also include headaches and tiredness. Prolonged exposure to strong acids like ammonia or chlorine is one of the main causes of Chronic Bronchitis.

Rhinitis

Rhinitis has symptoms very similar to that of the common cold: sneezing or an itchy or runny nose. It can present as a reaction to an allergen, but it can also be because of exposure to irritants. Rhinitis can be a difficult condition to diagnose, as it can often present very similarly to hay fever. So, it’s important if you work with irritants to be aware of its symptoms and possible causes.

Pulmonary Aspergillosis

Aspergillosis is caused by inhaling mould, and is also sometimes known as ‘farmer’s lung’. Exposure to a fungus can cause an abscess to grow in the lung cavity and cause very serious health problems. It is usually more common if you already have one of the above chest conditions, as the lungs and respiratory system would already be weakened. It’s very important to keep an eye out for the symptoms of aspergillosis (cough, wheezing and high temperature) as it can develop quite severely and occasionally requires surgery to treat it.

Why should you speak to a solicitor?

If any of these conditions sound familiar to you, and you work in an environment with irritants, it could be that you have a work related chest condition. It’s important that you speak to a solicitor to advise you how to go about speaking to your employers in an appropriate manner. A solicitor would be able to help you navigate a personal injury claim to make sure you get back any financial compensation you deserve.

What can Beecham Peacock do to help?

Beecham Peacock have a team of expert personal injury lawyers with years of experience in dealing with cases involving work related chest conditions. Beecham Peacock are based in the North East – an area which has a strong presence of heavy industry. People who work in heavy industry are the most likely people to develop occupational chest conditions, so Beecham Peacock are well-versed in helping to fight for these claims.

Can you make a personal injury claim?

If you speak to Beecham Peacock about your work related chest condition, one of the things they might suggest is to make a personal injury compensation claim. Obviously money can’t give you back your health, but financial compensation can make up for any monetary losses that might have occurred because of your condition. If your condition has worsened to the point where you’ve had to miss work, you may have been made to take unpaid sick days. Also, any prescriptions you may have had to collect, including inhalers, could have incurred a significant cost.  You shouldn’t have to take a financial hit for a condition that has been caused by your work place, therefore was out of your control.

What’s the next step?

If you think you may have a work related chest condition, your next step should be to see a doctor and have your diagnosis confirmed. Once you have a diagnosis your next move should be to see a solicitor to discuss your options. If you’re short on spare time, Beecham Peacock have an online enquiry system so you can briefly outline your issue, and someone will get back to you with more information and to potentially make an appointment to see a lawyer.